While doing research for my novel Kill Big Brother I had off-the-record conversations with men and women from U.S. intelligence agencies. I also interviewed Dark Web types who insisted they stay on background. None of these individuals told me about secret government programs or anything at all that would make an interesting scene in a Jason Bourne movie. All I got was background and perspective—invaluable things to a journalist who wants to get things right. But recordings of some of those conversations are on my iPhone. Other sources are there, too. So I’ve password protected the encrypted data. It will automatically erase all the texts, audio and more if someone tries to guess their way into my phone.
That’s my reason for being concerned that U.S. Customs and Border Protection (CBP) has the power to disregard my Fourth Amendment rights and to demand I give them access to my digital devices if I fly internationally or even decide to drive to Montreal.
I’m a journalist and I must protect my sources, but I also don’t think my private photos, my social media, my texts and more are the government’s business. Yes, I have a healthy American distrust of authority.
Of course, like any sane person, I also want the U.S. government to nab terrorists before they blow up or shoot any of us to pieces.
Therein lies the dilemma of our time. Should we give up privacy for perceived security? I say “perceived” because the more I look into issues related to this question the less I am inclined to believe it makes us safer to let the government have loopholes right through the Fourth Amendment’s protections of our “persons, houses, papers and effects against unreasonable searches and seizures.”
Actually, giving them this kind of power can flood our intelligence agencies with so much data that the real bad guy’s data becomes a needle in the haystack. Such a data flood also takes precious resources away from the solid police work our law-enforcement and intelligence agencies really need to be doing (and often do so well).
There are many other dangers inherent in empowering government in this way, but let’s focus on this growing loophole that, without a warrant, allows U.S. Customs and Border Protection to gain access to what has become a vast depository of our most private photos, thoughts, contacts and associations—yes, our smartphones and laptops.
Sure, anyone who travels knows we give up a lot when we fly. We literally surrender as we put up our hands inside booths that scan our bodies. We take out our laptops out and put them on conveyer belts. We take off our shoes and shuffle along in our socks. We sit in seats that now average just 17 inches wide, down from 18.5 inches in the early 2000s, according to a lawsuit from Flyers Rights. All along we know our bags can be searched at any time. And we know this is done to enhance our safety, so we comply; in fact, we’d alert the authorities if we saw something suspicious.
But should this mean that when we travel internationally CBP should be able to search our smartphones and laptops without a warrant?
The courts have given the government a lot of power to search at the border. In United States v. Flores-Montano (2004) the Supreme Court ruled “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” Also, back in 1977, in United States v. Ramsey, the Court established “[t]hat searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” For our safety, said the Court in United States v. Montoya de Hernandez in 1985 “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant….”
Still, even at the border, the Fourth Amendment doesn’t become invisible ink; legally speaking, it’s just that routine searches become reasonable because the government needs to find bombs or illegal goods. So yes, we can all appreciate that CBP agents need to search bags and to scan electronic devices for guns, bombs and more.
But now these searches of our electronic devices are becoming common. On April 11, 2017 the CBP announced in a press release that they’d searched 14,993 electronic devices being carried by international travelers (they don’t say how many were American citizens). In all of 2016 CBP says they searched 19,033 devices. In 2015, reports say they searched about 5,000.
Searches of journalists have even made headlines. In October 2016, CBP agents denied a Canadian photojournalist, Ed Ou, entry into the U.S. after he refused to give them access to the data on his phones.
In July 2016, CBP agents detained a Wall Street Journal reporter, Maria Abi-Habib, who is an American citizen, and asked for access to her cell phones. She refused. The agents eventually released her without seizing or searching her devices.
Maria Abi-Habib wrote a Facebook post on the event in which she said in part:
[A CBP agent] handed me a DHS document, a photo of which I’ve attached. It basically says the US government has the right to seize my phones and my rights as a US citizen (or citizen of the world) go out the window. This law applies at any point of entry into the US, whether naval, air or land and extends for 100 miles into the US from the border or formal points of entry. So, all of NY city for instance. If they forgot to ask you at JFK airport for your phones, but you’re having a drink in Manhattan the next day, you technically fall under this authority. And because they are acting under the pretense to protect the US from terrorism, you have to give it up.
So I called their bluff.
“You’ll have to call The Wall Street Journal’s lawyers, as those phones are the property of WSJ,” I told her, calmly.
She accused me of hindering the investigation – a dangerous accusation as at that point, they can use force. I put my hands up and said I’d done nothing but be cooperative, but when it comes to my phones, she would have to call WSJ’s lawyers.
Pulitzer-winning producer and documentarian Laura Poitras, who helped to break the Edward Snowden NSA leak story in 2013, has had border intrusion issues for years, dating back to her coverage of the Iraq War. Her co-author on the Snowden stories, Glenn Greenwald, wrote in detail about her travails in 2012:
Laura Poitras, a documentary filmmaker and the recipient of a 2012 MacArthur Fellowship, estimates that she has been detained more than 40 times upon returning to the United States. She has been questioned for hours about her meetings abroad, her credit cards and notes have been copied, and after one trip her laptop, camera and cellphone were seized for 41 days.
Because of cases like this the Electronic Frontier Foundation (EFF) has submitted friend-of-the-court briefs arguing that warrants should be required for all search and seizures of digital devices at international airports and at the U.S. border. Also, the EFF wants the border search exception to be narrowly defined so that CBP agents can only enforce customs and immigration laws.
Now, it’s important to also consider the government’s side, as they are trying to protect us. Governments have, after all, had spies pose as journalists. In the U.S. it’s especially easy to do so, as we are all the media. There are no official media credentials and there shouldn’t be—freedom would go away pretty fast if the government got to decide who is officially a member of the media.
Also, many of the searches of journalists’ digital devices that have made the biggest waves have tended to be of people who have traveled to countries with known terror links.
The CBP argues: “The increase of electronic device searches is driven by CBP’s mission to protect the American people and enforce the nation’s laws in this digital age. CBP has adapted and adjusted its actions to align with current threat information. CBP border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.”
So what’s the right balance?
“They should have to comply with the Fourth Amendment’s protections,” says Adam Schwartz, senior staff attorney for the EFF. “We have submitted amicus briefs in several cases in hopes that the Supreme Court will require the government to get a warrant before invading the privacy of U.S. citizens.”
Schwartz also notes that this is a question the Supreme Court hasn’t specifically answered in the modern era—after digital devices grew into things that can contain so much of our private lives.
If government has a person on a watch list, sees reason to search based on probable cause and so on then they should be able to detain the person and go to a judge to obtain a warrant to search their digital devices. Outside of that scenario, allowing government agents to simply search a U.S. citizen’s contacts, social media, videos and everything else in search of a crime doesn’t feel American because it isn’t.
This is actually the type of warrantless, invasive search the Fourth Amendment was included in our Bill of Rights to prevent. For this reason Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.) introduced the Protecting Data at the Border Act in the Senate (S. 823) last February, while Rep. Polis (D-Colo.), Rep. Smith (D-Wash.), and Rep. Farenthold (R-Texas) have taken the lead on this issue in the House (H.R. 1899).
Frank Miniter is the author of Kill Big Brother, a novel that shows how we can keep our freedom in this digital age.